The King on the application of Director of Public Prosecutions v Crown Court at Bristol
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P,Mr Justice Chamberlain |
| Judgment Date | 28 September 2022 |
| Neutral Citation | [2022] EWHC 2415 (Admin) |
| Docket Number | Case No: CO/3262/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2022] EWHC 2415 (Admin)
PRESIDENT OF THE KING'S BENCH DIVISION
and
Mr Justice Chamberlain
Case No: CO/3262/2022
CO/3263/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Little KC & Victoria Ailes (instructed by Crown Prosecution Service) for the Claimant
David Hughes (instructed by Kelcey and Hall Solicitors) for the 1 st Interested Party
Barry Grennan (instructed by Howard Beanstein Solicitors) for the 2 nd Interested Party
Ben Knight (instructed by Cuttles Solicitors) for the 3 rd Interested Party
Louis Mably KC (instructed by the Attorney General's Office) as Advocate to the Court
The Defendants were not represented
Hearing dates: 26 September 2022
APPROVED JUDGMENT
Dame Victoria Sharp P and
Introduction
Those accused of criminal offences before magistrates' courts or the Crown Court have a general right to bail. That right is, however, subject to various exceptions under which some are remanded in custody pending trial. Parliament gave the Secretary of State for Justice power to make regulations prescribing the maximum period during which an accused may be in the custody of a magistrates' court or the Crown Court. Maximum periods, known as custody time limits, have been set. In section 22(3) of the Prosecution of Offenders Act 1985 (the 1985 Act), Parliament also conferred on courts the power to extend a time limit if certain conditions are satisfied.
In the last few weeks, many trials across England and Wales have had to be adjourned, sometimes for substantial periods, because of the unavailability of barristers to represent defendants. One cause of this unavailability has been a dispute between the Criminal Bar Association (the CBA) and the Ministry of Justice (the MOJ) about the basis and rates of payment for publicly funded legal aid work in the Crown Courts under the Advocates' Graduated Fee Scheme (AGFS).
It would not be appropriate for us to enter into the merits of the dispute, but the positions of the parties may be fairly summarised as follows. Both sides acknowledge that modifications to the basis and rates of payment are required. The MOJ has proposed some. The CBA currently considers they are inadequate to address what it regards as an existential threat to the criminal Bar and the wider criminal justice system. The dispute therefore continues, although discussions between the CBA and Ministers have recently taken place and further such discussions are scheduled.
Since the spring of 2022, the CBA has encouraged barristers to engage in various forms of action. Initially, this took the form of refusing to accept returns from other counsel. It subsequently escalated to “days of action”, in which barristers would refuse to appear on specified days or weeks, subject to consideration of individual circumstances. With effect from 5 September 2022, the CBA has invited barristers to refuse all work under the AGFS indefinitely, again subject to consideration of individual circumstances.
In each of the cases now before us, the accused person was remanded in custody awaiting trial, but the trial had to be adjourned because of the unavailability of counsel in the context of the CBA action. In each case, the prosecution applied to extend the custody time limit and the judge concluded that the prosecution had acted with all due diligence and expedition, but nonetheless refused the application to extend the time limit.
By these claims for judicial review, the Director of Public Prosecutions (the DPP) challenges the refusal decisions. The substantive issues before us are these:
Issue (1): What principles should be applied by courts when considering applications to extend custody time limits occasioned by adjournments in the context of the present action by the CBA?
Issue (2): Were the challenged decisions lawful?
Issue (3): If so, does the Crown Court have power to extend custody time limits after their expiry? Does the Administrative Court have power under section 31(5) of the Senior Courts Act 1981 (the 1981 Act) to substitute decisions extending the custody time limits in these cases? What relief, if any, should be granted?
A brief summary of our conclusions
We have reached the following conclusions:
(a) For the time being, adjournments made necessary by the absence of legal representation in the context of the CBA's indefinite action announced on 22 August 2022 may in principle constitute both a good and a sufficient cause for the purposes of section 22(3)(a)(iii) of the 1985 Act.
(b) The question whether such an adjournment does constitute a sufficient cause for extending the time limit will be case-specific. Judges considering applications to extend custody time limits should consider (i) the likely duration of the delay before the trial; (ii) whether there has been any previous extension of the custody time limit; (iii) the age and antecedents of the defendant; (iv) the likely sentence in the event of a conviction; a defendant should rarely be kept in custody if he has served, or come close to serving the likely sentence were he convicted; (v) any particular vulnerabilities of the defendant which make remand in custody difficult; (vi) in a multi-handed trial where representation difficulties apply to one defendant but not others, whether delay could be reduced by separate trials. Judges should bear in mind that the burden is on the prosecution to satisfy the statutory criteria for the granting of an extension.
(c) In every case, judges should consider whether the public interests served initially by remanding the defendant in custody can now be served by stringent bail conditions. If so, this should be the preferred course.
(d) Any extension of a custody time limit should be for a relatively short period, generally not exceeding about three months, so that the court retains the power to review the position in the light of changing circumstances.
(e) However, if the situation remains as it is now, the relevant point at which the unavailability of legal representation can properly be described as chronic or routine is likely to be reached by the last week in November 2022 (by which time three months will have elapsed from 22 August 2022). Once this point is reached, the absence of legal representation in the context of the CBA action is unlikely to be capable of supplying a sufficient reason for extending custody time limits.
(f) It is neither necessary nor appropriate for judges to attribute blame for the current dispute between the CBA and MOJ to one side or the other, or to comment on its underlying causes.
(g) Those given the responsibility of considering applications to extend custody time limits are, in general, highly experienced judges, and we readily acknowledge the difficulties of resolving applications to extend custody time limits in the current situation. Nonetheless, we have concluded that in each of the decisions under challenge, the judge erred in law in concluding that the unavailability of counsel could not constitute a sufficient cause for extending the custody time limit.
(h) As the custody time limits in each case have now expired, there is no power in the Crown Court under section 22(3) of the 1985 Act or in this court under section 31(5)(b) of the 1981 Act to extend those limits. There is therefore no point in quashing either of the two challenged decisions. Accordingly, although we grant the DPP permission to apply for judicial review, we refuse relief in the exercise of our discretion.
(i) Where the DPP seeks to challenge by judicial review a decision to refuse to extend a custody time limit, a High Court judge sitting in the Administrative Court may in principle exercise the powers of the Crown Court under section 22(3) of the 1985 Act to grant a short extension of the custody time limit pending any substantive or rolled-up hearing. However, this power should only be exercised if the claim is strongly arguable and the prosecution has shown that all the conditions in section 22(3) are met. In general, an oral hearing will be required.
Procedural matters
The claims were received by the Administrative Court Office by email on the evening of 7 September 2022. They were formally filed and issued on 8 September 2022. The DPP did not seek interim relief but requested an urgent rolled-up hearing before the Divisional Court on 9 September 2022, because in one of the cases the custody time limit was due to expire on that day and at that stage it was the DPP's stance that there was no power to extend the time limit after its expiry. The DPP has since changed this stance and argues that, in a case where the Administrative Court quashes a refusal to extend a custody time limit before its expiry, it can substitute a decision to extend under section 31(5) of the 1981 Act, even in a case where the custody time limit has by that time expired.
In an Order made on 8 September 2022, the court recognised that the claims raise important points of principle, which are likely to be of relevance across England and Wales, indicated that they were suitable for determination by a Divisional Court and noted that there was a strong public interest in resolving them quickly. Directions were given for a rolled-up hearing on 15 September 2022, a date fixed to allow the Interested Parties time to obtain legal aid and make representations. Because of delays in processing the Interested Parties' legal aid applications, that hearing was converted to a directions hearing and a new timetable set, leading to a rolled-up hearing on 26 September 2022....
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